Ecclesiastical
Law and the Church of England

Alexandra
Fairclough

In
1997, the Secretary of State for Culture Media and Sports commissioned the Newman
Report, A Review of the Ecclesiastical Exemption from Listed Building Control.
Many of the issues raised by John Newman in his report have been addressed in
the Faculty Jurisdiction Rules 2001, which came into force on 1 January 2001.
These changes include changes in nomenclature, new consultation procedures for
listed buildings and revised documentation. This article seeks to provide an overview
of the Church of England’s faculty system and an update of the recent changes.

WHAT IS ECCLESISTICAL EXEMPTION?

All
churches are subject to planning law, and planning permission is required for
operational development or change of use regardless of denomination or faith.
However, church buildings of certain denominations enjoy exemption from listed
building consent and conservation area consent. This exemption originates from
the Ancient Monuments Consolidation and Amendment Act 1913. Since 1913 this has
included ecclesiastical buildings that are, ‘for the time being, used for ecclesiastical
purposes’.[1]

The
Secretary of State for Culture, Media and Sport may restrict or exclude by order
certain buildings or categories of buildings from the exemption. Since 1994 the
exemption has applied only to those denominations that have created an ‘approved
system of control’. Currently, this exemption applies to the Church of England,
the Church in Wales, the Roman Catholic Church, Baptist Union Church, Methodist
Church and the United Reformed Church. Other denominations do not fall within
the exemption and full listed building or conservation area controls apply. Similarly,
other faiths such as Judaism and Islam also fall within secular control.

PLANNING CONTROL AND THE CHURCH OF ENGLAND

The
Church of England’s system of planning control, which was recognised by the Secretary
of State, is governed by canon law, ecclesiastical law and heritage law. As these
laws and canons form part of this country’s ordinary legislation, they require
the sanction of Parliament before coming into force.

In
addition to the requirement for planning permission, works to all Church of England
buildings (whether listed or not) have been controlled for many centuries by the
Consistory Courts of the Church. The faculty system is a judicial system now governed
by primary legislation (The Care of Churches and Ecclesiastical Jurisdiction Measure
1991), secondary legislation (The Faculty Jurisdiction Rules SI 1992 No 2882 and
SI 1992 No 2884) and a code of practice (The Care of Churches and Ecclesiastical
Jurisdiction Measure Code of Practice 1993).

Under
the provisions of the Care of Churches and Ecclesiastical Jurisdiction Measure
1991, all works, alterations and additions to parish churches, their churchyards
and contents require faculty approval.[2] This legal requirement applies to consecrated
buildings and land and other churches licensed for public worship since 1 March
1993.

A faculty
is a permissive right to undertake works to a church building or its contents.
It is the duty of the minister and churchwardens to obtain a faculty before carrying
out any alterations subject to the de minimis list (see below) provided by each
diocese. Works undertaken without a faculty are illegal even though a retrospective
confirmatory faculty may legitimise unauthorised works, and any person undertaking
works without a faculty may be liable to both civil procedures (in effect for
‘trespass to land and goods’) and criminal procedures (the Criminal Damage Act applies). A parochial church council (PCC) would also be in breach of trust and
a minister may also face disciplinary proceedings.

This
system has a far wider remit than the existing secular control as the scope extends
to all places of worship irrespective of their heritage status. These include
parish churches and other non-parochial structures such as institutional chapels.
Legally, ownership of a church is generally vested in the incumbent and held on
trust by the PCC for the parishioners, while the contents are the distinct responsibility
of the churchwardens who hold them on trust for the parishioners. However, final
control over the church, contents and land rests with the chancellor of the diocese,
acting on behalf of the bishop.

Once
consecrated by the bishop (usually by a special consecration service), a building
may not be used in a manner that does not respect its sanctity. A statutory duty
is placed on any person or body undertaking the care and conservation of a church
building in that they must have ‘due regard to the role of the church as a local
centre of worship and mission’ (although this duty does not apply to a chancellor
of the diocese when adjudicating a faculty petition), and all liturgical matters
should be classed as a material consideration (see paragraph 8.12 PPG15 and para
143 Welsh Office Circular 61/96).

In
relation to the Church of England the exemption[3] applies to the following:

any church building within
the faculty jurisdiction

any
object or structure within such a building

any
object or structure attached to the exterior of the building

any
object or structure within the curtilage of such a church building although not
fixed to the building. However, the exemption does not apply to an object or structure
attached to the building or within the curtilage if it is independently listed.

DE MINIMIS WORKS

The de minimis list includes works or items of a minor nature and as such do
not require a faculty. The chancellor agrees the list after consultation with
the diocesan advisory committee and others. The exemption from faculty usually
includes the following works:

maintenance
and cleaning of churchyards

introduction
or removal of moveable items

the
repair and maintenance of certain areas of church fabric and boundary walls so
long as the appearance and structure is not affected and the costs are minimal.

The
PCC, minister and/or churchwardens should seek the advice of the registrar or
the secretary to the diocesan advisory committee to assess whether the works fall
within the de minimis provision. This provision is usually agreed subject to conditions
such as the use of a quinquennial inspector or other suitably qualified professional;
the approval of English Heritage or the Heritage Lottery fund if financial assistance
has been given; and a recommendation in writing by the local planning authority
that planning permission or building regulations is not required.

APPLYING FOR A FACULTY

The
chart below depicts the proper procedure that a petitioner (or applicant) for
faculty should adopt following the new Faculty Jurisdiction Rules.[4] This flowchart
refers to schemes involving a material alteration to a building. Most straightforward
applications relating to repairs bypass the consultation process and do not require
press advertisements. The archdeacons do not have delegated powers to deal with
cases involving material changes or churchyard applications even if they are unopposed.
The type of cases dealt with by the archdeacons is tightly defined – mainly repairs,
maintenance and minor alterations such as the replacement of an altar cloth.

Every
diocese has a diocesan advisory committee (DAC) for the care of churches. It comprises
of a chairman, the archdeacons and not less than 12 other members. The archdeacon,
a person of more than six years holy orders, assists in the faculty procedure.
The diocesan bishop appoints him or her and the role is pastoral, administrative
and quasijudicial. The archdeacon has the authority to grant unopposed faculty
petitions for unlisted churches.

Who's
Who

LEVEL

LEGAL
ENTITY

Provincial - 2 provinces in England (Canterbury and York), each with an archbishop

The
Court of Arches (Canterbury) and The Chancery Court (York) - hears
appeals

Consistory
courts (one per diocese) - mainly hears objectionsChancellors - up to one diocese, but some chancellors appointed to several dioceses. Chancellors
decide the more complex faculty petitions on the advice of the DACs.Archdeacons - several per diocese, each responsible for several parishes. Archdeacons decide
the less complex faculty petitions.Diocesan advisory committees (DACs)
- one per diocese

Parish - 13,150 parishes in England and Wales with 16,000 churches (13,000 of them listed)

Incumbents - usually a vicar (one per parish) - responsible for the buildingsChurchwardens - at least two per churchParochial church councils (PCC) - representing
the congregation of each church

The
other members include two persons appointed by the Bishops’ Council and, of the
other ten, three are approved by each of the following: the Joint Committee of
the National Amenity Societies, English Heritage and the Local Government Association.
The intention is that the DAC must have access to a good knowledge of the history,
development and use of the church buildings; a good knowledge of the art, architecture
and archaeology of the artefacts, buildings and churchyards; and a good knowledge
of the care and conservation of historic buildings and their contents as well
as of liturgy and worship. The bishop may also approve other appointments to act
as consultants to the DAC if the DAC so requests.

The
functions of the DAC are set out in Schedule 2 of the Care of Churches Ecclesiastical
Jurisdiction Measure 1991.[5] They are briefly:

to act as an advisory body on matters affecting places of worship in the diocese
and in particular advise the bishop, chancellor, archdeacons, PCCs and any applicants
for faculties on related matters including architecture, archaeology and the history
of the place of worship; the use, care and design of places of worship including
redundancy; and the use and care of the church, its contents and its churchyard

to
assess the risk of loss or damage to archaeological or historic remains from any
proposals to petitions for faculties

create
a repository record for all proposals to alter, conserve and repair

to
approve the appointments of all quinquennial inspectors for the care and conservation
of church buildings.

The
faculty procedure has incorporated many of the recommendations of the Newman Report
and therefore responds to the concerns of the conservation fraternity. It appears
to have addressed the procedural differences between the secular and faculty system
at least in terms of the use of specialist advice, in the consultation with the
local planning authority and also with a further requirement of a justification
by the statements of needs and of significance. These changes include the following:

the chancellor rather than
the archdeacon grants faculties for changes and alterations to unlisted and listed
buildings as well as all churchyard matters, all opposed applications and confirmatory
applications. The archdeacon may grant faculties, under delegation, for building
repairs, maintenance and minor works to listed and unlisted building if the petition
is unopposed.

the
chancellor and archdeacon may only grant a faculty after seeking the views of
the DAC

the
arrangements for consultation with the Council for the Care of Churches are now
more tightly defined under the new rules

two
new documents, known as the Statement of Significance and the Statement of Needs,
must be submitted with the faculty petition if the building is listed

consultation
with the National Amenity Societies, English Heritage, Council for the Care of
Churches and the local planning of Churches and the local planning authority is
required at an early stage

the
period for display of public notices has been extended to 28 days for all faculty
petitions.

All
applicants for faculties must seek the informal advice of the DAC. This is advised
to be at the earliest opportunity. Indeed, on proposed schemes which involve changes
to a building, parishes are encouraged to consult the DAC informally at an early
stage.

Formal
advice must be sought of the DAC in all petitions for a faculty. The intending
applicant should submit plans, elevations, the statements of significance and
need (if a listed building) and a specification for the works. The Statement of
Significance should include as much information on the quality of the building
as possible. This includes a copy of the listing. The Statement of Needs, which
should be provided by the minister, churchwardens and the PCC, should give the
reasons why they consider that these changes are necessary to assist in worship
and the church’s mission. These two documents are important tools for the petitioners
and also for the parish architect, the DAC, English Heritage, the National Amenity
Societies and the Local Planning Authority. The chancellor will also consider
them. Petitioners for alterations relating to listed churches should submit their
statements (of needs and significance) at the earliest opportunity.

Appendix
B of the Faculty Jurisdiction Rules 2000(SI No 2047)[6] outlines the criteria for
consultation with the external bodies. It is likely that some consultation will
be required if the works include any of the following:

alteration
or extension to a listed church where the works would affect the special architectural
or historic character

works that will affect the archaeological importance of the church either internally
or externally within the church curtilage

any
demolition affecting the exterior of an unlisted church within a conservation
area.

All
alteration works to a Grade I or II* place of worship will necessitate the involvement
of English Heritage as will any demolition work (internally or externally) affecting
a Grade II listed church. The nature of the works and the age of the building
will determine which of the national amenity societies will need to be notified.
The most noticeable change in the procedures has been in the arrangements for
consultation with the local planning authority. Any change to a listed building
that affects the character of the listed building, irrespective of grade, will
require the involvement of the local planning authority (usually a conservation
officer). Where consultation is required, full details will be required including
the designs, other documents such as photographs, details of the works proposed
and both the statements. Twenty-eight days are required for the consultation and
any responses should be forwarded to the petitioner or DAC.

Objections,
in writing, may be made by any interested party. This includes parishioners and
the local planning authority as well as the other consultees. This may result
in an appeal procedure similar to a planning appeal. However, this is undertaken
before the actual decision is made. The forms of objection
are written representation and an oral hearing including cross-examination. The
chancellor will sit in a consistory court hearing and will assess and analyse
the evidence. The chancellor will present his judgement at the end of the hearing ex tempore or it may be reserved for a later date in writing.

The
burden of proof lies with the petitioners. Arguably it is not easily discharged.
Recent cases in the Court of Arches have imposed a higher test for petitioners
to satisfy in listed buildings than the secular test in Planning Policy Guidance
Note 15. The Consistory Courts follow a test of why? how?, and when?[7] In short,
the test needs to address the following:

have
the petitioners proved a necessity for the proposed works?

if
yes, will the works adversely affect the character of a church as a building of
special architectural and historic interest?

if
so, is the necessity such that in the exercise of the court’s discretion a faculty
should be granted.[8]

Necessity
has been interpreted as something less than essential but more than merely desirable
or convenient. A heavy burden sits on those who wish to alter listed churches.
In unlisted churches the approach is similar to that for listed buildings. Much
depends on the nature, age and quality of the unlisted building. Generally, alterations
are allowed unless there are grounds for refusal. Heritage issues are considered
as reasonable grounds for refusal.

A
statutory appeal exists to the Court of Arches in the Canterbury province and
the Chancery Court of York in the York province. An application for appeal must
be made on a point of law and the chancellor of either the Consistory Court or
the provincial court (the Court of Arches or the Chancery Court) gives leave.
The time limit is 28 days from judgement. The Dean of Arches or the Auditor of
the Chancery Court (in fact the same person) determines these appeals with two
diocesan chancellors presiding.

The
new faculty rules have incorporated many of the issues of concern relating to
heritage. This Parliament has allowed the faculty system to continue and any change
to it would require a constitutional upheaval. The system predates the secular
building control system by several centuries and the balancing argument remains
in that the existing and future needs of liturgy and mission are powerful material
considerations.

Religious
worship and mission is at the heart of the argument here. However, it must always
be remembered that churches are also national monuments and include many of the
most important historic buildings in England and Wales. (Almost half our Grade
I listed buildings are churches - 2,858 in total - and a further 2,900 are Grade
II*).

The new
consultation regime is welcomed and time will tell if the new rules are successful
in ensuring early involvement of national heritage specialists. The remaining
issues of concern relate to the lack of consistent policies or practical guidance.
These may vary from diocese to diocese as it does from planning authority to planning
authority. It is also argued that the system of decision-making is too private
with no public access to meetings or files at the lower levels. This is perhaps
justified by the facility to request an open hearing by any related objector.
However, it must be noted that the new rules require that, in all schemes involving
significant changes to listed buildings, a full set of plans should be on display
in the church from the date of the petition’s submission to the determination
of the application.

In
truth it is the PCCs and petitioners that may suffer the most from a lack of clear
guidance. These concerns may be shortlived as many of the dioceses have started
to produce guidance notes and booklets to assist the petitioner in the faculty
process. However, clear central guidance would be the most beneficial. The Council
for the Care of Churches also has started to produce quality guidance that is
now readily available on its website. The main issue here is that there are relatively
few professionals who understand the system adequately enough to advise parishes.
Hopefully, this overview of the system will help in this respect.

Recommended Websites

Update, September 2012
Recently there have been several significant changes in UK government planning guidance and policy.

In England Planning Policy Guidance Note 15: Conservation of the Historic Environment (PPG15, 1994) and Planning Policy Guidance Note 16: Archaeology and Planning (PPG16, 1990) have been cancelled by the Government. Initially replaced by Planning Policy Statement 5 (PPS5) in March 2010, current policy guidance for England is now given in the National Planning Policy Framework (NPPF) issued in March 2012. Further guidance is proposed, but in the meantime the guide which originally accompanied PPS5 remains in force - see PPS5 Historic Environment Planning Practice Guide.

In Scotland the principal statutory guidance on policy is now Scottish historic environment policy (SHEP), which was published in December 2011, with subsidiary guidance given in Historic Scotland’s Managing Change leaflets. These documents together replace the Memorandum of Guidance on Listed Buildings and Conservation Areas published in 1998.

Author

ALEXANDRA
FAIRCLOUGH MA(Arch), BSc(Hons), LLB(Hons),
MRTPI, IHBC is appointed to the Chester Diocesan Advisory Committee for the Care
of Churches. Thanks go to Mr Richard Mortimore, Secretary of the Chester DAC,
for his assistance in preparing this report.